The right to enjoy the highest attainable standard of health (right to health) is universally recognised. It is a vital pre-requisite for human wellbeing, life in dignity and sustainable development. According to the UN Secretary-General’s 2020 policy paper on COVID-19 and human rights, a health crisis of this magnitude has a critical adverse impact on economic development, political and social life, and, consequently, affects the whole range of human rights and freedoms, especially of the most vulnerable such as the elderly, women, LGBTI minorities, migrants and refugees.
The role of business in ensuring the right to health is significant, both in providing healthcare directly through privatised services and in the products and services necessary to ensure a functioning public system. In addition to businesses working directly with health, the role of all businesses in protecting employees from harms to their health has come under increased spotlight during the COVID-19 pandemic.
International human rights law (IHRL) addresses human health primarily through the right to health. Article 12 of the International Covenant on Economic, Social and Cultural Rights (CESCR) recognises that everyone has the right to “the enjoyment of the highest attainable standard of physical and mental health” and provides a non-exhaustive list of areas of special importance such as maternal, child and reproductive health; healthy natural and workplace environments; prevention, treatment and control of diseases; and health facilities, goods and services. CESCR General Comment No. 14 on the Right to Health interprets the normative content of the right to health broadly and distinguishes the freedoms, such as the right to control one’s health and body, sexual and reproductive health, and right to be free from interference, and entitlements, such as the “the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.” (para. 8). The General Comment elaborates that the scope of the right to health is broad and includes health care system as well as “the underlying determinants of health” connected to water, food, housing, occupational and natural environment, health-related education and entails the participation of the public in health-related decision-making (para. 11).
Although states are the primary duty bearers vis-a-vis health-related human rights, under the UN Guiding Principles on Business and Human Rights (UNGPs) business enterprises bear the duty to respect human rights and, hence, can be responsible for human rights abuses. In the pharmaceutical sector such abuses can be seen with overly high prices for essential medicaments, or producing and promoting medicaments with adverse side effects or addictive qualities. In the health care sector, private facilities have been seen to discriminate against their patients or create barriers for accessing sexual and reproductive health care services, for example.
To operationalise the right to health, the Availability, Accessibility, Acceptability and Quality (AAAQ) framework was adopted as the standard of implementation by the World Health Organization (WHO) and the UN High Commissioner for Human Rights (OHCHR). The framework provides benchmarks and indicators that can be used as guidance to ensure that the right to health is protected, respected and fulfilled.
These benchmarks examine, among others, whether there are sufficient health care facilities and services for the population; whether they are accessible for the most vulnerable; whether they cater for the specific needs of different groups; and, finally, whether these services meet the standard of quality. In the course of its AAAQ Toolbox project, the Danish Institute for Human Rights published a paper on the AAAQ Framework and Sexual and Reproductive Health and Rights (SRHR). The paper maps out SRHR services and develops the AAAQ indicators specific to different SRH service areas.
Socially and economically disadvantaged groups are more susceptible to the issues with the determinants of health which include, among others, quality of food and water, living and workplace environment. Moreover, vulnerable groups face barriers vis-à-vis accessing health care services and medicaments. As a result, these groups are more susceptible to contract diseases or experience health issues, and, in the aftermath, more likely to be excluded from proper treatment. APM Research Lab has estimated that the fatality rates caused by the COVID-19 pandemic are 3-4 times higher in the communities of colour than that of their white counterparts in the United States. Moreover, health-status discrimination is frequent in public or private employment, provision of services and other sectors. UNAIDS’ 2017 publication Confronting Discrimination reported that in many countries considerable number of persons living with AIDS/HIV had been refused treatment or had avoided going to the local clinic due to stigma and discrimination based on their health status.
To address specific health-related needs of vulnerable groups and individuals, international instruments guaranteeing their human rights include provisions related to health. For instance, Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) obligates member states to eliminate discrimination in the area of health care and guarantee health care services specific to women’s needs, such as those in connection with pregnancy. Similar emphasis has been applied to children (e.g. Article 24 of the Convention on the Rights of the Child) and to persons with disabilities (e.g. Article 25(b) of the CRPD emphasises the inclusion of children and older persons in provision of health care services specific to needs of persons with disabilities).
Social care or assistance for persons with physical or mental disabilities, or other health-related issues is part of the right to the highest attainable standard of physical and mental health. In the General Comment No. 5 on persons with disabilities, the Committee on Economic, Social and Cultural Rights indicated that Article 12 of the CESCR “the right to have access to, and to benefit from, those medical and social services … which enable persons with disabilities to become independent, prevent further disabilities and support their social integration,” including rehabilitation services. This principle is also supported by other provisions of the Convention, such as Article 9 on social security and Article 11 on the right to an adequate standard of living. The CRPD also refers to the provision of necessary social protection, assistance and support to help persons with disabilities and their families fully realize their rights to accessibility, independent living, employment, an adequate standard of living.
In the face of increasing privatisation of health care services, production of medical supplies and business activities’ impact on environmental, social and economic determinants of health, the role of the private sector is crucial in preventing threats and ensuring progress of the global health situation. Crucial interpretative documents, such as CESCR General Comments No. 14 (the right to health), No. 22 (the right to sexual and reproductive health), CEDAW General Recommendation No. 24 (women and health), CRC General comment No. 15 (the right of the child to health), clarify that states have human rights obligations not only in the public health sector, but they have to guarantee the right to health within the private sector as well. This implies that states must guarantee access to affordable and dignified health and social care services and medicaments, insurance, sexual and reproductive health services, non-discrimination, etc. To achieve this, states should monitor, regulate and supervise private health sector, require business entities to assess their human rights impacts and conduct human rights due diligence, and hold business entities accountable in case of abuses of human rights.
Private healthcare is a rapidly growing industry and is projected to reach US$7.4 trillion by 2027. Whereas business enterprises are leading actors in producing pharmaceutical supplies and medical equipment, they are also competing with public actors in the provision of healthcare services and facilities and medical insurance markets. According to the WHO, the growth of private health industry can be explained by the solutions private actors offer for the challenges of health systems, such as health fiscal space constraints, increases in disease burden, particularly in relation to noncommunicable diseases, demographic shifts including ageing, population displacement and political and economic instability.
All major healthcare models involve private actors in financing, provision, or supply of healthcare. However, state systems vary in terms of the proportions of public-private mix. According to the OECD’s Health at a Glance 2019, average public spending of OECD countries on health was 71% of total health expenditure, with Norway leading by 85% and Switzerland at 30%. According to a 2019 Report by the World Health Organization, almost 13% of the world population were spending 10% of their household budget as out-of-pocket funds on healthcare in 2015, and the percentage of population impoverished by out-of-pocket spending was 2.5% in the same year. At the same time, private provision or financing of healthcare does not necessarily entail improved efficiency, accountability, or medical effectivity, according to a 2012 article.
Privatisation of different public services and functions related to healthcare has been a global trend. According to the OECD data, the number of for-profit private hospitals in the US increased to 1650 by 2017 from 1068 in 2007, whereas the number of publicly owned hospitals declined by more than 150 in the same period. The UK government has been accused of using the COVID-19 pandemic to push privatisation of UK’s public National Health System. A 2016 article explains the privatisation trends in Europe and claims that many states have been pushing to create competitive healthcare market through a “purchaser-provider split,” which implies that the state purchases service from public and private sources alike, based on the quality and price offered.
As provided by the CESCR General Comment No. 24, privatisation is not prohibited by the international human rights law even in areas of essential public service, including healthcare. However, states cannot delegate their human rights obligations, and they are accountable for human rights impacts of privatisation. International human rights bodies have emphasised as problematic the lack of regulations and oversight of private actors in the sector, high costs and fees, increased disparities and inequalities, access to essential medicines in the countries over the globe. The COVID-19 pandemic has made these issues more pressing and extreme. Based on the preliminary data from Asian countries, a 2020 article claims that countries with more privatised health care systems have had more COVID-19 cases and mortalities, whereas countries with universal healthcare coverage or public healthcare fared better.
Apart from the direct link as actors in healthcare, private entities have indirect impact on the right to health of various stakeholders through business activities. Business impacts on environment can affect determinants of health of local communities and employees. An example of such an impact is the case of DuPont and severe negative health effects of its chemical products on communities in the US. Companies can also have adverse impact on the human right to health through insufficient health and safety standards and practices. According to a 2017 Report from the Human Rights Watch, migrant workers in Qatar worked in extreme heat and humidity which endangered their health and life. Under extraordinary circumstances, such as the COVID-19 pandemic, business activities might have adverse impact on the right to health without being hazardous or violating OSH standards. For instance, according to the International Labour Organization’s sectoral brief on COVID-19 and food retail, food retail workers have emerged as essential service and are under higher risk of infection during the pandemic. A 2020 article revealed that essential workers in private sector, such as food retail, experienced the lack of necessary personal protective equipment during the pandemic. COVID-19 pandemic also brought a spotlight to the links between the technology in healthcare and human rights. According to Human Rights Watch, applications that track and trace the virus through geolocation and data access represent a threat to human rights, such as the right to private life, freedom of movement, expression, and association. Amnesty International names Bahrain, Kuwait and Norway as the states with the most invasive applications for virus tracing.
Health is one of the key topics of the 2030 Agenda for Sustainable Development and global efforts for development and progress. SDG 3 contains specific health-related targets that aim for preventing diseases, solving the issues with the determinants of health, and ensuring access to affordable health care, especially in developing countries. Other SDGs also target the global issues with health-determinants or health of particular groups. Examples of the former are SDG target 2.2 on child malnutrition, SDG target 6.1 on sanitation and hygiene, SDG target 5.1 on universal access to sexual and reproductive health for women and girls. World Health Statistics Report of 2019 reported that although there was general progress with more than 50% of the health-related SDG indicators, several indicators, such as road traffic mortality, children overweight, malaria incidence, alcohol consumption, water sector ODA, remain stagnant or show trend in the wrong direction.
The Agenda 2030 also promotes Universal Healthcare Coverage (UHC) for all as a crucial aspect of sustainable development (SDG target 3.8). According to the WHO, UHC entails that all individuals and communities receive the health services they need without suffering financial hardship. A 2016 OECD Report found that UHC is linked with better health outcomes and is affordable for a large number of middle-income countries. Beyond the Agenda 2030, global initiatives are pushing for UHC. For instance, Global Conference on Primary Healthcare adopted the Astana Declaration in 2018 which envisions that strengthening primary health care to be a cornerstone for the UHC. UHC 2030 is a global multi-stakeholder platform to strengthen health systems for universal health coverage through advocating for increased political commitment to UHC and facilitate accountability and knowledge sharing. According to a 2019 WHO publication, cooperation with and engagement of the private sector is critical for achieving UHC.
Basu, S., Andrews, J., Kishore, S., Panjabi, R., & Stuckler, D. (2012). Comparative performance of private and public healthcare systems in low- and middle-income countries: a systematic review. PLoS medicine, 9(6), e1001244. https://doi.org/10.1371/journal.pmed.1001244 ;
« One of the most relevant instruments developed by the European Commission for supply chain management is the portal, part of the European Alliance for CSR. Founded by the Commission and leading companies in Europe in 2006, the Alliance brings together 260 companies. This free-to-use platform offers, among other things, information on topics, a set of good practices, codes of conduct and international frameworks. By highlighting child labor and work forced as main issues, the portal also addresses human rights. Other big topics include corruption, discrimination, freedom of association, collective agreements, health and safety, compensation and working hours.”
Action point 26
Pay particular attention to the ratification of a series of ILO conventions to health and safety at work
Globally, the scale of the consequences in terms of human suffering and economic costs of occupational accidents and illness, as well as major industrial disasters, has been a growing cause for concern in the workplace in recent years, at both national and international levels… Poor working conditions, deterioration of health at work, work accidents, in addition to being morally unacceptable, have an economic cost for the company and the community… The guide published by the United Nations “questions on the guiding principles relating to companies and human rights ”mentions as an example the setting of standards for the protection of health and safety in factories. Belgium has always attached great importance to safety and health at work. As a sign of this commitment, Belgium has ratified, in recent years, a series of key international labour Conventions including the fundamental principles of safety and health: the Occupational Safety and Health Convention (No. 155) and the Occupational Health Services Convention (No. 161). Belgium has also recently ratified Conventions relating to health and safety in high-risk branches of economic activity: The Safety and Health in Mines Convention (No. 176) and Safety and Health in Agriculture Convention (No. 184).
Actions of the federal government:
The reaffirmation of Belgium’s commitment will be manifested through the forthcoming ratification of the following conventions:
ILO Convention No. 187 on Occupational Safety and Health. This important international labour standard is intended to promote a culture of prevention in health and safety. This Convention aims to implement concrete measures, in consultation with the social partners, in order to gradually achieve a safe and healthy working environment, in a coherent and concerted manner, through the development of a national policy, a national system and a national program on occupational safety and health;
Convention No. 167 on Safety and Health in Construction. The instrument of ratification of this Convention will be deposited in Geneva in June 2016;
Convention No. 170 on Safety in the Use of Chemical Substances at Work.
By ratifying these key safety and health conventions, Belgium will not only commit to strengthening its own occupational health and safety system, but also to encourage other countries to follow it.
III. First National Action Plan on Business and Human Rights in Chile
Actions of the National Action Plan on Business and Human Rights
[page 27]
As observed in the reports prepared in the field of business enterprises and human rights by different national and international institutions, business enterprises may cause a series of adverse impacts, which could include the following: …. child labour (interfering with the health, development, education or family life of people under 18 years of age), unsafe or unhealthy conditions at work exposing workers to risks such as accidents and work-related accidents. Aspects out of the corporate’s scope may also be included -such as impacts on the environment that may cause health problems or affect the lifestyle of local communities …
Pillar 1: The State Duty to Protect Human Rights
Strand 6: Strengthening Coherence between Public Policies
Action point 6.2 [page 45]
The Ministry of Social Development will draft a proposal for gathering information about business and human rights, which includes the following:
Through the National Service of the Elderly, will coordinate dialogues about the services that provide the elderly residences with a human rights approach through protocols guidelines. The dialogues will be with enterprises at a regional level that provide services of care to elderly people to disseminate the guidelines the Service has define. [
Action point 6.3 [page 46]
The Ministry of Foreign Affairs will:
o Through the General Directorate of International Economic Relations, it will:
Continue to promote, in international negotiations, both at a bilateral and multilateral level, Intellectual Property Schemes seeking a balance between the protection rights of inventors and creators and the interests of society in general. In this context, apart from promoting Intellectual Property, consideration will be given to the respect for the human right of having access to knowledge and culture, and the right to healthcare.
Action point 6.5 [pages 46-47]
The Under-Secretariat of Social Security of the Ministry of Labour will coordinate national, regional and tripartite efforts concerning the National Programme for Health and Safety in the Workplace. This Programme seeks to promote the development of a national culture of prevention in health and safety issues; contribute to the protection of workers through the elimination of work-related dangers and risks, or to their reduction to a minimum level, with the purpose of preventing injuries, diseases and deaths caused by work and promote health and safety in the workplace. Implementation will be based on ILO Convention No. 187 about the Framework for Health and Safety in the Workplace and the Programme of Government of the President of the Republic, through a regional and nations process of consultation to representatives of the employers, workers, government entities and bodies responsible for enforcing Law No. 16,744.
Action point 6.6 [page 47]
The Ministry of Mining will disseminate the most relevant elements of the new Regulation of Mining Safety, which promotes and sets out the rights and duties related with occupational health and safety matters.
Strand 9: State Business Enterprises
Action point 9.2 [page 49]
The National Oil Company (ENAP), with the support of independent experts, will prepare a baseline to identify eventual impacts on human rights and the promotion and respect actions the Company is currently performing. This has the purpose to identify gaps and manage the relevant plans for human rights remediation and mitigations. Priority subjects included in the study will be: life, health, environment, water, communities and workers.
Pillar 2: The Corporate Responsibility to Respect Human Rights
Strand 1: Contextual issues: Development of texts allowing business enterprises to understand the local context and the risks of potential negative impacts on human rights.
Action point 1.3 [page 53]
The National Health Institute will coordinate, with expert support, the preparation of a study about the impact of the pharmaceutical industry.
Strategy “Commitment for the future of Colombia” [“Compromiso por el futuro de Colombia”]
(…)
Commitment with the health of Colombians: The Final Point Agreement [Acuerdo de Punto Final], the pact for available capacity of the ICU (intensive care units), the bonuses to first line health professionals during the pandemic, the dispersion of lung ventilators equipment and the extension of the national laboratory network will be accelerated.
VIII. FUNDAMENTAL PILLARS
i. Fundamental Pillar 1: The State’s obligation to protect human rights
Strand 1[Eje nº 1]: Promoting a human rights approach to economic and social revitalisation
In the framework of strengthening the health sector as part of the economic and social reactivation strategy, the Ministry of Health will strengthen respect for the human rights of the actors in the health system, within the framework of the culture of social security.
ii. Fundamental Pillar 2: The duty of business to respect human rights
(…)
Strand 4 [Eje nº 4]: Monitor how the actions of companies impact human rights
The Ministry of Labour will maintain a constant process of monitoring and review of compliance with labour and occupational health standards in enterprises.
Scope and content of the obligation to respect human rights [page 30]
For businesses, there are three dimensions to respect for human rights:
– Do not commit violations of human rights: This applies to a business’s active conduct, the direct impacts of its decisions, and its operations, and may encompass:
o The health- or life-threatening working conditions of its employees.
o The destruction of a source of water, permanent soil damage, and emissions that pose a threat to health.
– Do not contribute to violations of human rights: A business does not commit violations itself, but acts in a way that facilitates or smooths the way for violations. This may encompass:
o The marketing of products that could be harmful to health.
The Working Environment Act contributes to protecting the right to a safe and healthy working environment, the act protects, among other things, individuals against adverse impacts on health due to environmental pollution from business sources and contributes to protecting the right to the highest attainable standard of health through regulating access to health services.
I – THE STATE’S OBLIGATION TO PROTECT HUMAN RIGHTS
THE INTERNATIONAL FRAMEWORK
PROPOSAL FOR ACTION NO.1 [page 16]
ACTIONS UNDERWAY:
– France seeks to ensure that the issues of decent work, occupational health and safety and supply chains are addressed by the G20, particularly by working with Germany, whose presidency runs from 2016 to 2017. It also seeks to build on the G7’s commitments to the UN Guiding Principles in 2015, as well as commitments made during the International Labour Conference in June 2016, one of the three themes of which was “decent work in global supply chains”.
THE EUROPEAN FRAMEWORK
8.TRADE AND INVESTMENT AGREEMENTS [page 20]
France is currently revising its model agreement for the protection of investments. In particular, it is planning to significantly reinforce provisions on CSR and the State’s capacity to regulate in the social, environmental, health and cultural fields, as per the European draft model.
THE NATIONAL FRAMEWORK
9. THE PROTECTION OF HUMAN RIGHTS AND THE ENVIRONMENT: CONSTITUTIONAL GUARANTEES [pages 22-23]
The charter acknowledges a number of rights, including “the right to live in a balanced
environment which shows due respect for health” (Article 1), the obligation for public policies to “promote sustainable development” and “reconcile the protection and enhancement of the environment with economic development and social progress” (Article 6), the right to “have access to information pertaining to the environment” and to “participate in the public decision taking process likely to affect the environment” (Article 7), as well as the principles of precaution and prevention in the environmental field.
10. THE REINFORCEMENT OF LEGISLATION [page 24]
Recent public policies have led France to adopt new legislative measures supporting CSR.
In the development field, the Act of 7 July 2014 on France’s strategy for development and international solidarity states that policy in this field must take into account “the social and environmental responsibility of public and private actors”. Also under this act, “Companies shall implement risk management procedures to identify, prevent or mitigate social, health and environmental damage and human rights abuses that may arise as a result of their operations in partner countries”.
An act on a duty of vigilance for parent companies and outsourcing companies was promulgated on 27 March 2017. Under this act, companies that employ more than 5,000 employees in France, or more than 10,000 employees in France and abroad, must draft and implement due diligence plans. Plans must set out reasonable measures to identify risks and prevent serious abuse of human rights, fundamental freedoms, health, personal safety and the environment, arising as a result of the operations of the company, of companies under its direct or indirect control, or of subcontractors and suppliers with which it has well-established commercial relationships.
13. THE ROLE OF PUBLIC AGENCIES
The Agence Française de Développement (AFD) [page 28]
As mentioned above, pursuant to Article 8 of the French Act of 7 July 2014 France’s strategy for development and international solidarity, the development and international solidarity policy must take into account the social and environmental responsibility of public and private actors. Furthermore, companies must implement risk management procedures to identify, prevent or mitigate social, health and environmental damage and human rights abuses that may arise as a result of their activities in partner countries.
II – BUSINESSES’ RESPONSIBILITY TO RESPECT HUMAN RIGHTS
5. EMPLOYEE REPRESENTATIVES [page 40]
Under current legislation, judges sitting on interim matters can rule on the admissibility of claims by stakeholders outside of the company (in other words, they can name these stakeholders “interested parties” in specific circumstances). A number of different laws contain provisions on whistleblowers: … Article L 5312-4-2 of the Public Health Code applies to the safety of certain health products; Article L 1351-1 of the Public Health Code and Articles L 4133-1 et seq. of the Labour Code apply to serious public health and environmental risks …
III – ACCESS TO REMEDY
JUDICIAL MECHANISMS
AT THE NATIONAL LEVEL
1.4. PROCEEDINGS
The jurisdiction of French courts to hear criminal matters [page 49]
More specifically, French legislation is strict in combating human rights violations by legal entities. Under French law, it is a criminal offence for companies to engage in activities that breach people’s rights (violations of human dignity, working conditions that violate human dignity, forced labour), equality laws (gender discrimination, anti-union discrimination, denying the freedom to work, corruption), environmental laws (pollution), or social, health and safety laws (hindering organizations representing employees, concealed work, involuntary injuries or death due to workplace accidents).
Collective actions [page 51]
In its opinion dated 24 October 2013, the CNCDH recommended “extending collective action, to matters relating to the environment and health in particular. It is also essential that any French or foreign individual or legal entity residing in France or abroad be able to get involved in any collective action initiated against a French company.”
Collective action, which initially only applied to consumption and competition disputes, was extended to cover health disputes on 1 July 2016, pursuant to the provisions of the Act of 26 January 2016 on the modernization of the health system.
…
Given the different fields of application mentioned in the bill, collective actions will become a tool allowing plaintiffs to stop or remedy discrimination in the labour field and elsewhere, including with respect to the provision of services, accommodation, transport, etc. Collective actions will also be possible in the environmental, health, and personal data protection fields. [51]
German development policy actively supports dialogue between governments and enterprises (and their associations), trade unions and civil society on subjects such as vocational training, health and safety at work and minimum wage rates in partner countries.
1.3 State support
Export credits, investment guarantees and other instruments for the promotion of external trade
The current situation [page 17]
In the case of projects falling within the scope of the OECD Common Approaches and for investment guarantees with far-reaching environmental, social and human rights implications, compliance with international standards such as those of the World Bank Group, particularly its sectoral Environmental, Health and Safety Guidelines, is required in addition.
“(…) the second Italian NAP-BHR intends to strengthen the application of the UNGPs through a series of complementary measures, referring in particular to the following guidelines:
– addressing issues and practices related to the protection of the environment, health, decent work and ‘Human Rights Defenders’, also in the face of the new challenges posed by the gig economy and in the context of the National Recovery and Resilience Plan (NRRP), in correlation with the challenges of multi-dimensional post-Covid-19 reconstruction” (p. 7)
IV. Italian ongoing activities and future commitments
Irregular work in the agricultural sector
“In order to ensure compliance with health and safety regulations and thus contribute to reducing the risk of accidents and preventing occupational deaths, all useful synergies have been activated within the Regional Committees pursuant to Art. 7 of the Consolidated Act No. 81/2008 and the Provincial Committees for the participation of ASL prevention technicians in the activities of the task forces” (p. 22)
The principle of Diversity management in the business context
“With reference to the need to draw attention to impacts of business activity on family life and children’s rights, the Department for Family Policies published the new public call “#Conciliamo”, amounting to € 74 million, on 8 November 2019 for family-work reconciliation projects by companies, networks and groups of associated or controlled companies. Available funds will be used for interventions that promote a welfare tailored to families and to improve the quality of life of working mothers and fathers. The call has several specific objectives: the demographic revival, increase in female employment, rebalancing of workloads between men and women, support for families with relatives with disabilities, health protection, combating the abandonment of the elderly.” (p. 42)
ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP
“10. Consolidate respect for the fundamental rights of people with disabilities in line with international conventional standards in relation to access to and quality of hospital care through the promotion and dissemination of the “Charter of Rights of People with Disabilities in Hospital” created by the Coop. Sociale Onlus Spes contra Spem in 2010.” (p. 62)
Inclusion of ‘business and human rights’ in the Netherlands’ national policy
Combating abuse of migrant workers
“…The government seeks to exclude employment agencies which exploit labour migrants from the market. The Task Force report also states that the interdependence between housing, work, transport and care must cease. Because health insurance is often arranged through the employer, if a worker loses their job they also lose access to insurance. …” p.27.
The Nigeria NAP provides a list of existing constitutional obligations, domestic legislation, internation obligations, and police and administrative steps. This breakdown only looks at the list of challenges and the implementation of the 3 pillars of the UNGPs.
The Nigerian NAP on Business and Human Rights does not address Health and social care.
The UN Guiding Principles are intended to promote more sustainable, socially beneicial economic development. Promoting human rights is directly and indirectly linked with environmental protection, climate and anti-corruption eforts. For example, the right to health can be afected by hazardous substances and air, soil and water pollution.
2. The State duty to protect human rights
2.1 The state as legislator
[Page 18]
The Norwegian Human Rights Act9 states that certain key human rights conventions have the force of Norwegian law10 and take precedence over any other legislative provisions that are in conflict with them. In 2014, a number of human rights were also enshrined in the Norwegian Constitution. The duty of business enterprises to respect human rights is set out in Norwegian legislation, for example in the Working Environment Act, the Gender Equality Act and the Environmental Information Act. In addition there are acts regulating other areas that may have consequences for human rights, such as the Nature Diversity Act, the Pollution Control Act and the Greenhouse Gas Emission Trading Act. These are intended to contribute to a stable climate and a healthy environment, and to help safeguard the right to health. Generally speaking, Norwegian legislation safeguards human rights in Norway, so that companies that operate only in Norway are in little danger of violating these rights as long as they comply with the legislation.
A | General Measures Relevant to Business and Human Rights (pages 73-75)
‘Benazir Income Support Programme was inaugurated to provide social assistance to women by giving interest free financial assistance to female beneficiaries under their Waseela-e-Haq (Micro-Finance) programme to start their own businesses. Additionally, the Waseela-e-Sehat programme subsidizes health care for beneficiaries and provides life insurance to close to one million women while the Waseela-e-Rozgar programme provides vocations and technical trainings. Similary the Ehsaas Program includes components related to financial assistance, micro-credit, interest free loans, and similar initiatives for women and vulnerable or marginalised groups.’
B | Measures Relevant to NAP Priority Areas
ii. Anti-Discrimination, Equal Opportunity and Inclusion
Sindh (page 77)
‘The Sindh Women Agriculture Workers Act 2019 was promulgated to protect the social security rights of female labourers in Sindh.’
iv. Labour Standards and the Informal Economy
Punjab (pages 81-82)
‘The Punjab Provincial Employees Social Security (Amendment) Act 2013 increases the wage limit of workers and entitles the nearest kin of a secured employee to a death grant.
[…]
The Provincial Employees Social Security Ordinance 1965 requires an employer to provide health care, including maternity care, to full-time domestic workers under Section 55A.’
Sindh (page 82)
‘Section 59 of the Sindh Employees’ Social Security Act 2016 states that employers are to provide health care and maternity care to full-time domestic workers.’
Balochistan (page 84)
‘The Provincial Employees Social Security Ordinance 1965 requires employers to provide health care, including maternity care to full-time domestic workers under Section 55A.’
CHAPTER III : DIAGNOSIS AND BASELINE: ACTION AREAS
3.2. Conclusions of the specific issues
Women
There is historical structural discrimination against women that generates various violations in the access to rights such as freedom from violence, sexual and reproductive health, participation in decision-making spaces, and violations in social and economic rights. The Peruvian State has been developing a mandate to mainstream the gender approach and promote gender equality in order to coordinate, articulate, and oversee policies and institutional management.
There are important practices from the business sector such as the implementation of the Working Committee for the Promotion of Women’s Empowerment in the Business Sector, as well as other initiatives in empowerment for leadership and business, promotion of incursion in traditionally male tasks, rankings, and seals that recognize companies that implement gender equality practices. One of the main demands from civil society is the establishment of a care system, which represents one of the main barriers to women’s equal access to work and other spaces. It is also important to mention that it is necessary to implement due diligence measures. – page 45
The first Polish Strategy for Persons with Disabilities 2021–2030
[page 17-20]
“In 2020, a draft Strategy for Persons with Disabilities was developed in the Ministry of Family and Social Policy.”
(…)
“Another priority area of the Strategy is ‘Living conditions and social protection’. “
(…) “Within the ‘Health’ priority area, measures have been planned in order to fulfil Poland’s obligations following from the Convention (Article 25), in particular to provide persons with disabilities with health care, access to health services and programmes taking into account their specific requirements and needs with respect to health prevention, prevention of secondary complications and deterioration of health condition, medical rehabilitation and optimisation of the quality of functioning. The planned measures concern, among others, improvement of accessibility of preventive medical treatment, improvement of accessibility of health services, improvement of access to rehabilitation services and the highest quality medical devices, development of a model of comprehensive rehabilitation, reform in the field of mental health and improvement of medical personnel’s competencies in the field of health care of persons with disabilities.”
States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.
The commitment to respecting and protecting human rights is built into Slovenia’s foundations. The Constitution stipulates citizen, political, social, and economic rights, as well as the rights to a healthy living environment and to drinking water. Article 74 of the Constitution states that commercial activities may not be pursued in a manner contrary to the public interest. In accordance with the constitutional right to a healthy living environment, the conditions and manner in which economic and other activities are pursued are established by law (Constitution, Article 72).
Specific expectations concerning human rights protection in business are defined in the relevant legislation governing employment relationships, health protection, environmental protection, and prohibition of discrimination in the workplace.
Principle 3a [page 14]
a) Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps.
Health and safety at work: Slovenian legislation governing health and safety at work is part of EU law and follows the conventions of the International Labour Organisation. The legislation has already been upgraded with employers’ obligation to plan and implement workplace health promotion. The workplace health promotion programmes in Slovenia are complemented with measures to ensure the health and safety of workers and other persons involved in the work process.
In accordance with the Health and Safety at Work Act,30 the employer is obliged to ensure health and safety at work, draft and adopt a written safety statement with a risk assessment, adopt measures to prevent, eliminate and address cases of violence, mobbing, harassment and other forms of psychosocial risk at work, to plan and implement workplace health promotion, and plan workplace health promotion in a safety statement with a risk assessment. The Health and Safety at Work Act envisages sanctions for employers violating obligations under the law. In March 2015, the Ministry of Health adopted the Workplace Health Promotion Guidelines,31 which set out the basic principles for planning and implementing workplace health promotion. All employers have to adapt these basic principles to their own organisation and circumstances.
Planned measures:
[Pages 18-19]
Health and safety at work: In compliance with the Resolution on the National Health Care Plan 2016-2025 ‘Together for a Healthy Society’37 and to guarantee a safe and positive working environment, the Ministry of Health is planning to evaluate the current implementation of occupational, transport and sport medicine, and its funding and placement in the health-care system. On this basis, the Ministry will introduce relevant adaptations, including an occupational diseases surveillance system. The Ministry will set up a mechanism for exchanging good practices and experience in workplace health promotion. Special attention will be devoted to the revised regulation of the field of occupational diseases.
In the next decade, the Ministry of Health will provide expert support for health promotion in schools, the working environment and local communities. It will raise awareness of the importance of health and a healthy lifestyle, empowering individuals and all key institutions that could help improve the health of the population and reduce inequalities in health through their activities. The Ministry will ensure the evaluation of health promotion programmes carried out in these environments, particularly those implemented by NGOs. Particular attention will be devoted to capacity building for work with vulnerable groups and to enhancing partnerships with local communities, NGOs, work organisations, education institutions and social security structures.
The Ministry of Labour, Family, Social Affairs and Equal Opportunities has drafted the Resolution on the National Programme of Health and Safety at Work 2018-202738 to create and maintain a working environment which will preserve workers’ health throughout the entire period of their employment, so that they will be able to work longer, and the work performed will be to their personal satisfaction.
The Ministry will continue its awareness-raising efforts for both employers and employees on health and safety at work by organising seminars and workshops, and through other relevant activities. As part of the project Eliminating Workplace Conflicts (Raising awareness of the possibility of mediation in disputes between employees and employers and consulting for employers), the Labour Inspectorate of the Republic of Slovenia will undertake awareness-raising activities and provide training (particularly) for employers on obligations and responsibilities concerning the provision of health and safety at work by means of workshops, lectures, conferences and seminars organised throughout Slovenia. The project is aimed at raising employers’ awareness of their obligations concerning the provision of health and safety at work, and of their duty to prevent conflicts in the working environment that result from inadequate practices and their negative effects on workers’ health.
Enhance the Effectiveness of Grievance Settlement [page 6]
Relief Process>
– Support making an extra remedy account to aid victims who were excluded from government aid (1 25 billion won), actively find more victims, make the best use of emergency medical support system, and expand monitoring on victim’s health.
The purpose of the Discrimination Act (2008:567) is to combat discrimination and in other ways promote equal rights and opportunities regardless of sex, transgender identity or expression, ethnicity, religion or other belief, impairment, sexual orientation or age. The Act applies to employment in a broad sense, educational activities, labour market policy activities and employment services not under public contract, starting or running a business, supply of goods, services and housing, organisation of a public gathering or event, and health and medical care and social services.
A clean, healthy and sustainable environment is integral to the full enjoyment of human rights. Pollution, for example, can have an adverse impact on health and well-being, which is a violation of the rights laid down in human rights conventions. While the ‘Green Economy’ report explicitly addresses the economy–environment link7, the CSR Action Plan sets out cross-cutting thematic instruments rather than focusing specifically on this issue. [page 6]
Appendix 1: Concrete actions taken by Taiwan to fulfill the state obligation to protect
Promotion of international consensus and cooperation (page 28-29)
‘[…] Taiwan believes that trade contributes to sustainable development. […] In line with this, Taiwan has included CSR, environmental, and worker rights clauses, as well as “general exceptions,” in many of its trade and investment agreements, such as the following:
[…] Inclusion of “investment/environment/labor” clauses: Host states shall not attract investment by relaxing health, safety, or environmental protections, or by lowering labor standards. At present, Taiwan has several free trade agreements (FTAs) with such clauses, including Article 10.15 of the Taiwan-Guatemala FTA, Article 10.11 of the Taiwan-Nicaragua FTA, Article 10.16 of the Taiwan-El Salvador-Honduras FTA, Article 24 of the Taiwan -Japan BIA, and Article 12.16 of the Taiwan-New Zealand FTA.
“General exception” clauses: These clauses focus on the following twin 29 themes: 1) investment agreement specifications shall not be interpreted as prohibiting host states from adopting necessary measures based on public interests, such as protecting human health, and 2) such measures should not cause arbitrary or unreasonable discrimination against investors. Such “general exception” clauses are included in Article 16 of the Taiwan-St. Vincent BIA, Article 16 of the Taiwan-Philippines BIA, and Article 31 of the Taiwan-India BIA.’
Other legislative action and measures (page 29)
‘Article 25 of the “Tobacco and Alcohol Administration Act” stipulates that the nicotine and tar levels of tobacco products must not exceed the maximum limit set by the “Tobacco Hazards Prevention Act” in order to protect the right to health. Article 27 provides that the operations of tobacco and alcohol manufacturers must meet good hygiene standards and relevant factory standards to prevent infringement of the right to health.’
The core content of the National Action Plan on Business and Human Rights
3.1 Action plan on labour
3.1.1 Overall situation [page 28]
The Office of the Thai Health Promotion Foundation has implemented a project to improve the well-being of informal workers and develop mental health promotion models to help “reduce suffering and create happiness” among labourers, both in the field of health training for informal labour leaders and creating incentives for informal workers to change health behaviours to increase happiness and reduce stress in their lives. After participating in various activities, it was found that informal labour leaders had an average happiness equal to 32.36 points, up from the original 30.28 points (27 to 32 points mean an average happy person) and the average stress is 4.14 points, down from the previous 5.08 points (0–4 points means less stress) which results in an increase in happiness levels and less stress levels.
3.1.2 Challenges
Challenges identified in this section come from the information gathered during regional consultations and discussions with various sectors continuously during 2016–2019. It has been found that there are still many challenges that people expect the government to accelerate in solving problems related to labour issues. These can be summarized as follows:
Elimination of employment discrimination and discrimination in workplace. Relevant laws should be reviewed and amended to protect and eliminate employment discrimination in all cases. The Gender Equality Act 2015, especially Section 17, should be reviewed whereas awareness of the Act as well as complaint mechanism under this Act should be raised among all sectors. Equal employment regardless of gender discrimination should be promoted. The following problems should be addressed, for example, termination of employment due to pregnancy, forced HIV testing before and during work, discrimination against employees with HIV in workplace … [page 30]
Access to healthcare for workers. Employers should oversee and provide medical treatment, and certify health insurance for workers as well as ensure the right to access to the universal healthcare coverage scheme for workers including migrant workers without discrimination. [Page 31]
3.1.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
6.
Eliminating discrimination in employment and the workplace
Develop measures to prevent and manage issues related to HIV/AIDS in the workplace by promoting the implementation of National
Guidelines on Prevention and Administration of HIV/AIDS
in the Workplace to be used as operational guidelines for HIV/AIDS in the workplace.
– Ministry of Labour
– Ministry of Public Health (Sub- committee on Promotion and Protection of the rights of HIV/AIDS)
2019–2022
Number of establishments/ businesses/ employees involved in promotion activities
– National Strategy for Social Cohesion and Just Society
– SDG 3 and 8
– UNGPs Articles 1, 3, 4, 5 and 7
8.
Suitable working conditions
Study international standards regarding appropriate work conditions (Decent Work
for All), including safety and occupational health, and use them as a baseline to create a suitable regulation or rule as an operating guidance for business
– Ministry of Labour
2019–2022
Number of studies
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 8
– UNGPs Articles 1, 3, 4, 5 and 7
9.
Access to health services for workers
Providing health services to workers including disease prevention and control, health promotion and medical treatment and rehabilitation
– Ministry of Labour
– Ministry of Public Health
2019–2022
Number of insured persons receiving medical services
– National Strategy for Human Capital Development and Strengthening
– SDG 3 and 8
– UNGPs Articles 1, 3, 4, 5 and 7
Develop friendly health service systems for migrant workers such as migrant public health volunteers to create effective access to public health
– Ministry of Public Health
2019–2022
A mechanism to provide public health services for migrant workers
– National Strategy for Human Capital Development and Strengthening
– National Strategy for Social Cohesion and Just Society
– SDG 3, 8 and 10
– UNGPs Articles 1, 3, 4, 5 and 7
Driving forward the settlement and operation of Wellness Centers both in public health service points and establishments
– Ministry of Public Health
2019–2022
Number of hospital and establishments that operate Wellness Centers in line with criteria set by the Department of Disease Control
– National Strategy for Human Capital Development and Strengthening
– SDG 3 and 8
– UNGPs Articles 1, 3, 4, 5 and 7
Pillar 2: Responsibilities of the business sector in respecting of human rights
2.1 Elimination of discrimination in the workplace
State enterprises and the business sector must not consider not employing or terminating employment due to HIV infection.
3.2 Action plan for community, land, natural resources and the environment
3.2.1 Overview of the situation [page 62]
… in determining the process of participation of the community and the public, Section 58 under the section of the State duty, stipulates that individuals and communities have the right to receive information, explanations and reasons from government agencies before allowing anybody to do what may affect resources, quality of life, health, sanitation, quality of life or any issue seriously affecting people or communities. The government must conduct studies and assess the impact on the quality of the environment and health of people or communities, and arrange for public hearings in which people and communities are involved.
…
However, the fast development of industrialized areas of the country and the use of modern technology for development results in affecting more parts of nature, and at the same time it also results in negatively affecting others in various fields, including the impact on natural resources and their depletion, natural disasters that occur frequently and more violently than in the past, and direct negative health effects from using technology such as pesticides in new farming practices and indirectly due to the quality of natural resources depletion in various fields such as land, water and air. Therefore, it is a challenge that the government has duties and responsibilities to supervise an appropriate development level for the country to create a balance between the use of natural resources at the appropriate levels and guidelines to drive the growth of the country, together with the conservation of natural resources for the highest benefit as well as sustainability of the country in every dimension.
…
For the mining project, details of improvement of the environmental and social impact assessment system are as follows:
(1) Minerals Act B.E. 2560 (2017) and related subordinate legislation divided mining into three types according to the size of the area, types of minerals, geological characteristics of the mineral resources, mining methods and impacts on the quality of environment and public health that may arise from mining. [65]
(3) In addition, the Mineral Act B.E. 2560 (2017) and the relevant subordinate legislation require the preparation of basic information on the environment and public health and creating a barrier area in the case that the mine may result in causing highly adverse impacts to the quality of environment and public health.
(4) At present, every step of the environmental and social impact assessment of the mining project considers the importance of three types of impacts from large-scale projects: (1) The impact of environmental pollution on health; (2) Forcing communities to relocate without compensation or insufficient plans; and (3) Lack of public consultation or inadequate studies with communities that are affected by the development of large-scale projects.
Despite the positive strides taken to provide legal protection for vulnerable groups, gaps persist and certain groups remain susceptible to suffer negative consequences of business operations. In particular, those that are already marginalized or excluded in society – as is often the case for women, minority groups, migrants, and persons with disabilities and persons living with HIV/AIDS.
(…)
Persons living with HIV/AIDS: The consultations established that there was discrimination on the basis of HIV status in business operations. Reports were shared about mandatory testing of prospective and current employees, resulting in dismissal of those found to be HIV-positive.
CHAPTER FIVE: INSTITUTIONAL FRAMEWORK
5.16 The communities and households
The community and households will;
Strengthen social support networks and mechanisms to protect and promote the welfare of vulnerable groups.
Section III: Additional National Action Plan Commitments …
Table 2: Procurement Commitments
The Department of Health and Human Services will “work with industry partners, civil society, unions, individuals with lived experience, and other subject matter experts to develop and make available a suite of sector-specific tools, including online training, recommendations, model policies, and a resource portal, to prevent forced labor, human trafficking, and related practices in the supply chains (including purchased services) of U.S. health systems and public health institutions, pursuant to the Trafficking Victims Protection Act of 2000 (TVPA), as amended by the National Defense Authorization Act for Fiscal Year 2013, and Federal Acquisition Regulation Subparts 22.15 and 22.17.”
